X (A Child), Re

Disclosure of documents generated in family proceedings may be permitted for wider public-policy purposes, including protecting other children and assisting criminal or child-protection authorities. The application is not confined to disclosure benefiting the child who was the subject of the proceedings. The family court must balance confidentiality and the encouragement of frank evidence against the public interest in justice, investigating serious crime and inter-agency co-operation. It is not the family court’s function to decide whether criminal proceedings should be brought. Disclosure should be limited by conditions governing confidentiality, permitted purposes, onward disclosure and use in evidence. These principles apply where disclosure is sought by a foreign government, with appropriate regard to international co-operation and comity.

The court considered applications by Northumberland County Council and the Government of Kenya for permission to disclose documents generated in concluded care and adoption proceedings concerning X. The local authority sought disclosure of the earlier judgment to the police and immigration authorities for safeguarding and investigative purposes. Kenya sought disclosure of a wider body of documents to relevant governmental and law-enforcement bodies for child-protection, policy and investigative purposes.

The applications raised the interaction between confidentiality in family proceedings, Children Act 1989, section 98, and the public interest in criminal investigation and international co-operation. The court also considered the protection given to admissions made in family proceedings and the conditions appropriate to disclosure.

1. Disclosure to domestic authorities. The balance fell plainly in favour of permitting disclosure of the earlier judgment to Northumbria Police and the UK Border & Immigration Agency. The relevant considerations included the welfare and interests of other children, the public interest in investigating serious crime, the relevance of the material and inter-agency co-operation. Disclosure was not confined to cases where it benefited X personally.
2. Role of the family court. The family court’s task was to decide whether disclosure should be made so that competent authorities could consider prosecution. It was not to decide whether Mr Y or Ms Z should be prosecuted. Any objection that there was no case, or that prosecution would be inappropriate or oppressive, belonged to the criminal justice process.
3. Section 98 protection. Section 98(2) prevented statements or admissions made in the family proceedings from being used against the maker in evidence in criminal proceedings, but did not prevent their use in a police inquiry or to challenge inconsistent evidence or credibility. The undertaking offered by Kenya appropriately reflected that protection.
4. Disclosure to Kenya. Disclosure to the Government of Kenya was appropriate. Its status as a foreign government was no reason for refusal. The public interests in preventing child abduction and illicit inter-country adoption, together with international and judicial co-operation, strongly supported disclosure. The order was subject to conditions preserving confidentiality, restricting use to stated purposes, controlling onward disclosure and protecting against prejudicial publicity.
5. Corporate litigants. A party’s status as a corporate litigant did not mean that every officer or member was entitled, ex officio, to the proceedings papers. Access required at least a legitimate need for a proper purpose and might still require prior judicial sanction. The court declined to decide whether Kenya’s earlier disclosure required prior permission.
6. Orders. Orders were made substantially in the proposed terms, with confidentiality and use restrictions, liberty to apply for modification or further disclosure, and no order as to costs save public-funding detailed assessment of X’s costs.